Opinion
04-21-00385-CV
10-20-2021
Lisa SEPULVEDA, Appellant v. Manuel MOLINA and Marcos Molina, Appellees
From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2019CI09823 Honorable Cathleen M. Stryker, Judge Presiding
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice
PER CURIAM
Appellant Lisa Sepulveda asserts she did not receive the required notice or acquire actual knowledge of the trial court's judgment until thirty-seven days after the judgment was signed. She sought to invoke Rule 306a so the periods would run from the date she asserts she learned of the judgment. But Sepulveda failed to comply with the Rule, her motion for reconsideration did not extend the appellate timetable, and her notice of appeal was untimely.
Because Sepulveda failed to invoke this court's jurisdiction, we necessarily dismiss this appeal for want of jurisdiction.
Background
In the underlying cause, the trial court signed a final judgment on June 11, 2021. Sepulveda asserts she did not receive the required notice or acquire actual knowledge of the signed judgment until July 19, 2021. On August 18, 2021, she filed a motion for reconsideration which referenced Rule 306a, but it was not sworn. She filed her notice of appeal on September 10, 2021.
Because her notice of appeal appeared to be untimely, we ordered Sepulveda to show cause why we have jurisdiction in this appeal. Her response argued she successfully invoked Rule 306a, her motion for reconsideration extended the deadline to file her notice of appeal, it was timely, and this court has jurisdiction in this appeal.
We disagree.
Invoking Rule 306a
Generally, a postjudgment motion or notice of appeal is due thirty days after the judgment is signed. Tex.R.Civ.P. 329b; Tex.R.App.P. 26.1; John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 739 (Tex. 2001).
If a party does not receive the required notice or acquire actual knowledge of the judgment until more than twenty days after the judgment is signed, Rule 306a allows the time periods to run from the date the party received notice or acquired actual knowledge of the judgment. Tex.R.Civ.P. 306a(4); In re Lynd Co., 195 S.W.3d 682, 684 (Tex. 2006).
Tex. R. Civ. P. 306a(5); accord In re Lynd Co., 195 S.W.3d at 685.In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.
"When, as here [under Rule 306a], a sworn motion is a requirement to establish jurisdiction, it must be sufficiently verified to invoke the trial court's power to act." City of Laredo v. Schuble, 943 S.W.2d 124, 126 (Tex. App.-San Antonio 1997, no writ) (footnote omitted) (addressing Rule 306a).
"The sworn motion establishes a prima facie case that the party lacked timely notice and invokes a trial court's otherwise-expired jurisdiction for the limited purpose of holding an evidentiary hearing to determine the date on which the party or its counsel first received notice or acquired knowledge of the judgment." In re Lynd Co., 195 S.W.3d at 685 (emphasis added); accord Wanzer v. Garcia, No. 04-09-00442-CV, 2009 WL 3303715, at *1 (Tex. App.-San Antonio Oct. 14, 2009, no pet.) (per curiam) (mem. op.).
"Unless a party establishes in the manner prescribed by [Rule 306a] that [she] had no notice or knowledge of the judgment, the general rule prevails: a trial court's power to reinstate a cause after dismissal expires thirty days after the order of dismissal is signed." Mem'l Hosp. of Galveston Cty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam).
Discussion
The trial court signed its judgment on June 11, 2021, which made a postjudgment motion or notice of appeal due on July 12, 2021. See Tex. R. Civ. P. 329b; Tex.R.App.P. 26.1; John, 58 S.W.3d at 739. Sepulveda filed her motion for reconsideration on August 18, 2021, thirty-seven days after the motion was due. See Tex. R. Civ. P. 329b; John, 58 S.W.3d at 739. However, her motion was not sworn, and it did not "invoke[] [the] trial court's otherwise-expired jurisdiction for the limited purpose of holding an evidentiary hearing to determine the date on which [she] first received notice or acquired knowledge of the judgment." See In re Lynd Co., 195 S.W.3d at 685; In re Mitchell, 2017 WL 3392768, at *3.
Because Sepulveda did not comply with Rule 306a(5), the trial court's jurisdiction was not extended and her notice of appeal was due on July 12, 2021, thirty days after the judgment was signed. See Gillis, 741 S.W.2d at 365; Wanzer, 2009 WL 3303715, at *1.
Sepulveda filed her notice of appeal on September 10, 2021, but it was untimely. See Tex. R. App. P. 26.1(a)(1); Tex.R.Civ.P. 329b(a); In re Estate of Block, No. 04-11-00558-CV, 2011 WL 5115697, at *1 (Tex. App.-San Antonio Oct. 26, 2011, no pet.) (citing Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)).
Conclusion
Sepulveda's motion for reconsideration did not comply with Rule 306a's sworn motion requirement. Thus, the appellate timetable ran from the date the trial court signed the judgment, and her notice of appeal was untimely. Because Sepulveda failed to invoke this court's jurisdiction, we necessarily dismiss this appeal for want of jurisdiction.